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MACK APPEAL. (10/05/56)

October 5, 1956


Appeals, Nos. 144-45, 154-58, March T., 1955, from judgment and sentences of Court of Quarter Sessions of the Peace and Court of Oyer and Terminer of Westmoreland County, No. 1, January T., 1955, in re attachment for contempt of David W. Mack. Judgment and sentences, as modified, affirmed.


Charles E. Kenworthy, with him Walter T. McGough and Reed, Smith, Shaw & McClay, for appellants.

Fred B. Tresher, J. J. Snyder, Jr., Vincent R. Smith, and Kunkle and Trescher, for appellants.

Paul K. McCormick, with him H. Reginald Belden, for appellees.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 386 Pa. Page 253]


The seven defendants severally appeal from judgment and sentence by the court below finding each of them guilty of contempt, and imposing upon each a fine and five days imprisonment in the county jail. The appeals were argued together and will be disposed of in one opinion.

The respective judgments and sentences were sustained by the court below upon findings that defendants violated Westmoreland County rule of court No. 6084. The rule provides:

"(a) No pictures or photographs shall be taken, immediately preceding or during sessions of this court or recesses between sessions, in any of the court rooms

[ 386 Pa. Page 254]

    or at any place in the court house within forty feet of the entrance to any court room.

"(b) No court proceeding shall be broadcast or televised.

"(c) No pictures or photographs of any party to a civil or criminal action, juror or witness, shall be taken in the Law Library or in any office or other room or the court house, except with the knowledge and consent of the person or persons photographed.

"(d) No prisoner or inmate of the county jail shall be photographed in the jail or on his way to or from a session of court."*fn1

As set forth in the facts hereunder, we are concerned only with subsections (a) and (b) of the rule, and our decision will be limited to these.

By a verdict of the jury J. Wesley Wable, known as the "Turnpike Killer," had been found guilty of first degree murder with a recommendation of the death penalty. On December 28, 1954, he had been called for sentence by Judge BAUER of the court below, in court room No. 5 on the fourth floor of the court house. This was a matter of common knowledge to the defendants.

The fourth floor consists of an octagonal shaped court room, flanked by the judge's chambers and a 50 foot corridor. The corridor is reached by means of a public elevator and a stairway. Entrance to the court room is from the corridor. Near this court room door the defendants surreptitiously took photographs of Wable and deputy sheriffs as he was being escorted to the court room. Wable, who was manacled to the sheriff, had been conveyed from the county jail to the first floor of the court house, and thence by elevator to the fourth floor. While he and the officers were approaching

[ 386 Pa. Page 255]

    the entrance to the court room, and within 40 feet thereof, the defendants, by prearrangement each with the others, took the photographs in question.*fn2 These were procured without Wable's or the court's consent or knowledge. In fact, the attention of the sheriff and his deputies was distracted by a decoy photographer. The photographs were taken by means of infra red rays not requiring the use of flash bulbs and causing no commotion or noise. The following day these photographs were published by the defendants.

The defendants admit that they committed all of the acts hereinbefore described, and also that these acts were performed by agreement among them. Their plea is in the nature of "confession and avoidance."

The first contention is that the rule of court is in conflict with the federal and state constitutions involving the right of free press. However, as pointed out by Erwin D. Canham, Editor of the Christian Science Monitor, "freedom of the press is not a right of the press. It is right of the people."*fn3 By the instant rule the court was attempting to preserve the dignity of the court and the decorum of trial, thereby insuring the orderly administration of justice. To be valid, such rule must be reasonable. Thus in American Communications Assn., C.I.O. v. Douds, 339 U.S. 382, 399, it was held: "When particular conduct is regulated in the interest of public order, and the regulation results

[ 386 Pa. Page 256]

    in an indirect, conditional, partial abridgement of [freedom of the press] ..., the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented." In Fitzgerald v. Philadelphia, 376 Pa. 379, 387, 105 A.2d 887, this Court held: "'Of course, it is accepted constitutional doctrine that these fundamental human rights are not absolute ... The essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery.'"

Therefore, whether or not freedom of the press is here involved is immaterial, since such freedom is subject to reasonable rules seeking maintenance of the court's dignity and the orderly administration of justice.

The defendants repeatedly assert that they do not contend for the right to take pictures within the court room, even by the infra red ray method which is accompanied by no display or disorder. But it must be conceded that if we sustain their contention that this rule of court infringes upon their rights of freedom of the press, the court likewise would have no power to forbid the taking of pictures in the court room which were accompanied by no disorder or disturbance. Yet this Court has adopted Rule 223 of the Pennsylvania Rules of Civil Procedure, which has the effect of a statute,*fn4 and which provides: "During the trial of actions the court shall prohibit the taking of photographs and motion pictures in the court room and the transmission of communications by telegraph, telephone, or radio in or from the court room." In addition, Canon

[ 386 Pa. Page 25735]

of the American Bar Association reads as follows: "Proceedings in court should be conducted with fitting dignity and decorum. The taking of photographs in the court room, during sessions of the court or recesses between sessions, and the broadcasting or televising of court proceedings are calculated to detract from the essential dignity of the proceedings, ... degrade the court, and create misconceptions with respect thereto in the mind of the public and should not be permitted."*fn5

The Westmoreland County rule incorporates the provisions of Pa. R.C.P. 223(b), and then proceeds to state further restrictions and limitations by it deemed proper and necessary to preserve the dignity of the court and the decorum of trial. The taking of a picture of a person called for sentence certainly does not inform the public as to any material facts, and serves no purpose except to pander to the lower tastes of some individuals. Court rooms and court houses are not places of entertainment, and trials are not had for the purpose of satisfying any sadistic instinct of the public seeking sensationalism.

The fact that the contempt in this case did not occur in the court room, but in the precincts of the court, does not make the rule unreasonable. "... the Court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its

[ 386 Pa. Page 258]

    officers, jurors and witnesses; and misbehavior anywhere in such place is misbehavior in the presence of the court": Ex Parte Savin, 131 U.S. 280. As stated in Ex Parte Sturm, 136 A. 312 (Md): "It is essential to the integrity and independence of judicial tribunals that they shall have the power to enforce their own judgment as to what conduct is incompatible with the proper and orderly course of their procedure." The Westmoreland County rule is proper so long as it bears a reasonable relation to the aim sought: maintenance of the dignity of the court and the orderly administration of justice. Certainly in this case the area affected is reasonable, as are the limitations of action, and the rule prohibiting the taking of pictures within the stated limits is well within the power of the court. See also Robinson v. City Court for City of Ogden, 185 P.2d 256 (Utah); People v. Ulrich, 34 N.E.2d 393 (Ill.)

Amicus Curiae cites the case of People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769, in which conviction was reversed where the public and representatives of the press were excluded from the court room during the taking of testimony. But the court stated that the reason for the reversal in that case was that such exclusion deprived the defendant of an impartial and public trial. That case has no bearing on the instant case. Here the defendants were freely entitled to enter the court room and its precincts, and the press was accorded full coverage. Moreover, in an opinion written by the same judge who wrote the opinion in the cited case, the New York Court of Appeals denied the right of the Press Associations and Newspaper Publishers to be present at the trial of Jelke, and to report the proceedings, and further the court held: "... this is not a case of ... freedom of the press ... and ... the right asserted by petitioners is not embraced within the constitutional provision guaranteeing those freedoms ...

[ 386 Pa. Page 259]

But freedom of the press is in no way abridged by an exclusionary ruling which denies newspapermen the opportunity to 'see and hear what transpired.' ... The fact the petitioners are in the business of disseminating news gives them no special right or privilege, not possessed by other members of the public ..."*fn6 See also State of Ohio v. Clifford, 162 Ohio 370, 123 N.E.2d 8, certiorari denied, 349 U.S. 929.

The defendants also violated the rules of court of Westmoreland County, which were made to insure the right of privacy of the defendant. There can be no question that American jurisprudence recognizes the right of privacy; the only question being its limits. See "The Right to Privacy," by Samuel D. Warren and Louis D. Brandeis, 4 Harvard Law Review, 193. As stated in 77 C.J.S., Right of Privacy, at page 397, in some, but not in all jurisdictions the existence of such right has been recognized, even in the absence of statutory regulation. In this jurisdiction we find no basis for denying the existence of such right or its enforceability. See the excellent opinion of Judge ALESSANDRONI in Clayman v. Bernstein, 38 D. & C. 543, and cf. Horlow v. Buno Co., Inc., 36 D. & C. 101. See also Waring v. WDAS Broadcasting Station, Inc., 327 Pa. 433, 194 A. 631, and particularly the concurring opinion of Justice MAXEY appearing at page 456; and Restatement, Torts, § 867.

The court below, as are all courts, was charged with a duty to protect the right of privacy of the prisoner. It cannot be doubted that the prisoner was powerless to do so by any means within his control; and in such case the court has an inherent duty to use all reasonable means to safeguard that right. It is true that, in

[ 386 Pa. Page 260]

    a sense, the prisoner has been set apart from the general public and has become a "public figure." Yet he is the involuntary subject of court restraint and entitled to the safeguard of his individual right of privacy, just as the court is charged with securing to him his right of a fair trial and other rights too numerous to mention. In this case the defendant was found guilty of murder in the first degree by verdict of the jury, but at the same time he was a ward of the court who must be protected against the invasion of his rights by the press as well as the public. All reasonable rules looking to the establishment of such safeguards must be sustained. It needs no citation of cases to prove that many innocent persons have been found guilty and sentenced upon criminal charges, and later released when their freedom from guilt has been established. See Commonwealth v. Zampogna, 81 Pa. Superior Ct. 74, and Commonwealth v. Fideli, 81 Pa. Superior Ct. 79.

The able opinion of President Judge RICHARD D. LAIRD, writing for the court below, amply justifies the sustaining of these judgments. However, since these are "test" cases, we prefer to modify the sentences by striking therefrom the provision for imprisonment, leaving the sentence intact as to the imposition of fine and costs.


With the determination that the rules, so far as involved here, are reasonable, and not an abuse of the court's discretion, the judgment and sentences, as so modified, are affirmed.


While I agree with the Court's decision prohibiting photographing a prisoner at the entrance of the Courtroom,

[ 386 Pa. Page 261]

I wish to record my emphatic opposition to photographing (with or without infra red rays) or televising or broadcasting Court proceedings. This question may not have been specifically argued in this case, but it was argued by the Press in an unreported companion case. Moreover, as Justice ARNOLD so aptly says, if the present contention of defendants is sustained the Court would have no power to forbid the taking of pictures in the Courtroom.

Freedom of the press - the right to freely publish and fearlessly criticize - was a plant of slow growth. It did not spring full-grown as Minerva did from the brow of Jupiter, nor rise as quickly as did the warriors when Cadmus sowed the dragon's teeth. It was planted by many hardy, freedom-loving souls and nurtured by public opinion for several centuries before it grew to be a tree of gigantic stature. Government both in England and the United States constantly tried to suppress or destroy it. Freedom of the press became a recognized inherent Right only after and as a result of the famous Zenger libel case in New York City in 1735. In that case Zenger's lawyer, Andrew Hamilton of Philadelphia,*fn1 argued vigorously for the right of a newspaper to criticize freely and truthfully the acts and conduct of governmental officials. The Court refused to recognize the theory of freedom of the press, or permit Hamilton to prove "Truth" as a defense; nevertheless the jury, ignoring the charge of the Court, acquitted Zenger. Public opinion rallied to the cause which Hamilton pleaded and freedom of the press gradually became recognized as an inalienable Right which

[ 386 Pa. Page 262]

    was ordained and affirmed in the Constitution of the United States and in the Constitution of Pennsylvania.

However, it is an often overlooked truism that neither freedom of speech nor freedom of the press, nor freedom of religion, which together constitute our Country's great bulwark of freedom, is absolute and unlimited: Poulos v. New Hampshire, 345 U.S. 395; Beauharnais v. Illinois, 343 U.S. 250; Garner v. Los Angeles Board, 341 U.S. 716; Dennis v. United States, 341 U.S. 94; American Communications Assn. v. Douds, 339 U.S. 382; Kovacs v. Cooper, 336 U.S. 77; United Public Workers of America v. Mitchell, 330 U.S. 75; Whitney v. California, 274 U.S. 357; Gitlow v. New York, 268 U.S. 652; Gilbert v. Minnesota, 254 U.S. 325; Schenck v. United States, 249 U.S. 47; Frohwerk v. United States, 249 U.S. 204; Debs v. United States, 249 U.S. 211; Abrams v. United States, 250 U.S. 616; Pierce v. United States, 252 U.S. 239; Schaefer v. United States, 251 U.S. 466; Fitzgerald v. Philadelphia, 376 Pa. 379, 102 A.2d 887; Wortex Mills, Inc. v. Textile Workers Union, 369 Pa. 359, 363, 85 A.2d 851; Commonwealth v. Geuss, 168 Pa. Superior Ct. 22, 76 A.2d 500, 368 Pa. 290, 81 A.2d 553; State of Ohio v. Clifford, 123 N.E.2d 8. See also: Rule 223 (b), Pennsylvania Rules of Civil Procedure; Canon 35, Canons of Judicial Ethics, American Bar Association.

In United Public Workers of America v. Mitchell, 330 U.S., supra, the Court said (page 95): "Of course, it is accepted constitutional doctrine that these fundamental human rights are not absolutes. ... The essential rights of the First Amendment in some instances are subject to the elemental need for order without which the guarantees of civil rights to others would be a mockery."

[ 386 Pa. Page 263]

In American Communications Assn. v. Douds, 339 U.S., supra, the Court said (page 394): "Although the First Amendment provides that Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of constitutional government to survive. ... Freedom of speech thus does not comprehend the right to speak on any subject at any time. ... the right of the public to be protected from evils of conduct, even though First Amendment rights of persons or groups are thereby in some manner infringed, has received frequent and consistent recognition by this Court. [Citing cases.] ... We have never held that such freedoms are absolute. The reason is plain. As Mr. Chief Justice HUGHES put it, 'Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.' Cox. v. New Hampshire, supra [312 U.S. 569] at 574."

In Gitlow v. New York, 268 U.S., supra, the Court said (page 666): "It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. 2 Story on the Constitution, 5th ed., § 1580, p. 634; Robertson v. Baldwin, 165 U.S. 275, 281; Patterson v. Colorado, 205 U.S. 454, 462; Fox v. Washington, 236 U.S. 273, 276; Schenck v. United States, 249 U.S. 47, 52; Frohwerk v. United States, 249 U.S. 204, 206; Debs v. United States, 249 U.S. 211, 213; Schaefer v. United States, 251 U.S. 466, 474; Gilbert v. Minnesota, 254 U.S. 325,

[ 386 Pa. Page 264332]

; Warren v. United States, (C.C.A.) 183 Fed. 718, 721. Reasonably limited, it was said by Story in the passage cited, this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic."

In Wortex Mills, Inc. v. Textile Workers Union, 369 Pa., supra, this Court said (page 363): "Freedom of speech is not absolute or unlimited - for example, a man may not slander or libel another; he may not publicly blaspheme the Deity; he may not engage in loud speaking through sound trucks during certain hours or in certain parts of a city; and he may not assemble with others to commit a breach of the peace or to incite to riot or to advocate the commission of crimes. Freedom of speech gives no right of intimidation or coercion and no right to damage or injure another's business or property, ...."

To hold that Freedom of Speech or of the Press is absolute and unlimited would produce ridiculous situations and often result in disorder, confusion or Judicial or governmental paralysis. For example, under the absolute freedom theory, persons could talk lewdly or loudly or all at once, or even shout "Fire" in a Courtroom; every press representative and every freedom loving citizen in the Courtroom could, during the trial, take noiseless photographs of Judge, jury, defendant and all persons connected with or witnessing the trial. Having one's picture taken, especially if it is likely to appear in the papers, possesses a fatal fascination for many persons. Under such theory and practice, the attention of the Judge, stenographer and witnesses would be diverted and distracted, every trial which had aroused a large public interest would degenerate into a circus side show, respect of the people for Law, Order and the Courts would diminish immensely, and many trials would become a travesty of Justice.

[ 386 Pa. Page 265]

Furthermore, while gathering of the news is an indispensable part of the privately owned newspaper business, it is important to point out that freedom of the press does not give a constitutionally protected right to gather news: United Press Associations v. Valente (Court of Appeals of New York), 123 N.E.2d 777, 778. Sober reflection will refute any contrary view. For example the Constitution does not require persons interviewed by the press to submit to interrogation or to answer questions or furnish data or information. Freedom of the press means a constitutionally protected right to publish news without censorship, but even that right is, as we have seen, neither absolute nor unlimited.

Appellants have not only overlooked the authorities hereinabove cited and quoted, but have likewise overlooked a very important analogous authority which cuts out from under them the ground upon which they build their basic contention of absolute Freedom of the Press. The Supreme Court of the United States has promulgated the following Rule of Court, viz., Rule 53 of the Federal Rules of Criminal Procedure, Title 18, U.S.C.A.: "The taking of photographs in the court room during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the court room shall not be permitted by the court."

If the taking of photographs of Court proceedings was privileged by the First Amendment - "Congress shall make no law ... abridging the freedom of speech, or of the press ..." - it is unthinkable that the Supreme Court of the United States would have adopted or would maintain its above quoted Rule of Court.

In the light of these reasons and authorities, it is manifest that a Court has the power, and in the interest and for the preservation of Justice and the orderly administration of law, should prohibit (1) the taking

[ 386 Pa. Page 266]

    of photographs (as well as the broadcasting and televizing) of Court proceedings, and (2) the photographing of all persons connected therewith, in Courtrooms and, if necessary or advisable, within a reasonable distance from the entrances thereto. What is a reasonable distance will, in each case, depend upon the facts. However, the Court's power does not extend to other rooms or offices which are in the same building and are occupied by public or non-judicial officials, even though the entire building is called a Court House.

To summarize: It is clear that Rule of Court No. 6084(a) and (b) adopted by the Courts of Westmoreland County, is valid and constitutional.

However, I do not agree with the majority's opinion on the subject of privacy, nor its prohibiting the taking of pictures of a prisoner who, while in custody, is on his way to or from the Court but not near the Courtroom. It seems to me that a person's right of privacy is limited and in some instances lost when he is charged with or convicted of crime. In such a case he becomes a public figure who, with certain limitations, as for example when he is in the Courtroom or in the County jail, is subject to being photographed in a public place, on a proper occasion and for a proper purpose. I believe that in such a case, the public interest is (subject as aforesaid) paramount to the private right or interest. Pictures have become a colorful and important part of a newspaper. Taking photographs of a public figure, like gathering public news, while not within the protection of the First Amendment, is an important right which should not be unreasonably shackled or restrained. Cf. Craig v. Harney, 331 U.S. 367; Pennekamp v. Florida, 328 U.S. 331; Bridges v. California, 314 U.S. 252. See also, Concurring Opinion of Justice FRANKFURTER in Dennis v. United States, 341 U.S. 529-553.

[ 386 Pa. Page 267]

The language of the Supreme Court of Massachusetts in Themo v. New England Newspaper Publishing Co., 306 Mass. 54, 58, is particularly applicable to the case of the appellant who was convicted of taking a picture of Wable on the first floor of the Courthouse: "The present cases do not require us to decide whether any right of privacy is recognized by the law of this Commonwealth. If any exists, it does not protect one from having his name or his likeness appear in a newspaper when there is legitimate public interest in his existence, his experiences, his words, or his acts."

I would hold (1) that that part of Rule 6084(d) which prohibits the photographing of a prisoner or inmate of the County Jail on his way to or from a session of the Court, but not at the entrance to the Courtroom (in this case three floors away), is invalid; and (2) the ...

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